On July 17, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Kal Tire v. Vitale, 2020 NY Slip Op. 32355(U), holding that service on a doorman at the address shown in the defendant’s DMV records was sufficient service despite the defendant’s claim that he did not live there, explaining:
Here, the Affidavit of Service indicates that service was effected on Mr. Deninno through the concierge at the LIC Address on January 15, 2020. To the extent that Mr. Deninno argues that the concierge did not constitute a person of suitable age and discretion, this is incorrect because service left with a doorman, followed by a mailing, has been held to be valid where building access is prohibited, as was the case here.
Mr. Deninno also denies that the LIC Address was his dwelling place or usual place of abode. Instead, Mr. Deninno attests that he never resided at the LIC Address and that his friend who lived there, Rebecca Querci, let him use the address for his driver’s license. Mr. Deninno explains that the LIC Address was used to renew his driver’s license on September 6, 2019 before he moved to Italy on September 15, 2019 with the intent to stay there permanently. Ms. Querci also attests that she permitted Mr. Deninno to list her LIC Address with the DMV, but states that he had never stayed with her at this address.
In further support of his motion, Mr. Deninno adduces a Consular Certificate, dated September 5, 2019, from the Consulate General of Italy in New York that certified Mr. Deninno’s intent to permanently return to Italy on September 15, 2019, which certificate was issued for the introduction of the Customs Tariff of the Italian Republic. He also attaches cellphone records that indicate cellphone service from Italy for the period of September 16, 2019 to January 23, 2020, other than a few odd weeks. Under these circumstances, Mr. Deninno has provided a fact-based, sworn denial that would typically be sufficient to rebut the presumption that service was valid such that a traverse hearing would be necessary to resolve whether service was proper.
Notwithstanding the foregoing, Vehicle and Traffic Law § 505 (5) requires that every motor vehicle licensee notify the Commissioner of Motor Vehicles of a change in residence within 10 days of the change and failure to comply with this provision estops a defendant from challenging the propriety of service made at a former address.
Mr. Deninno relies on Matter of RBC Capital Mkts. Corp. v Bittner, 24 Misc 3d 728 [Sup Ct, NY County 2009] to argue that his failure to update his address with the DMV cannot estop him from contesting service. However, his reliance is misplaced. In RBC Capital Markets, the defendant was served in New York based on the address listed on his driver’s license and the court concluded that his failure to report a change of address did not estop him from relying on defective service where the defendant moved to New Jersey. Significantly, the court compared the motor vehicle statutes in both states and concluded that Vehicle and Traffic Law § 505(5) was inapplicable because it would effectively deprive the defendant of benefitting from a longer period to update his change of address as provided by the sister state of New Jersey. In contrast to RBC Capital Markets, Mr. Deninno did not move to a neighboring state of New York or seek the benefit of any statute for which application would be denied if Vehicle and Traffic Law § 505(5) were to be upheld in this case.
In addition, whereas the defendant in RBC Capital Markets neglected to timely update his address with the DMV, Mr. Deninno affirmatively misrepresented his address to the DMV. Here, significantly, the record indicates that Mr. Deninno affirmatively misrepresented his address by recording the LIC Address at the DMV, an address that he now attests was never his residence (NYSCEF Doc. No. 7). Under these circumstances, Mr. Deninno is estopped from relying on any alleged defective service because he failed to report his change of address in accordance with Vehicle and Traffic Law § 505 (5) (see Burke v Zorba Diner, 213 AD2d 577, 578-579 [2d Dept 1995] [denying motion to dismiss for lack of jurisdiction where defendant’s failure to report address change to DMV was an affirmative misrepresentation that plaintiff had every right to rely on when effecting service of process]; McCleaver v VanFossen, 276 AD2d 603, 604 [2d Dept 2000] [defendants estopped from contesting validity of service when they moved from New York to the State of Washington without providing notice of their change of address]).
Moreover, the renewal of Mr. Deninno’s New York driver’s license on September 6, 2019, just 9 days before he purportedly made a permanent move to Italy, reveals that Mr. Deninno attempted to obscure his new address, especially when Mr. Deninno was, or should have been, aware of this impending action as Kal Tire filed a petition for pre-action discovery in January 2019 concerning his alleged fraud. Thus, Mr. Deninno is also estopped from raising defective service as a defense because the record indicates that he engaged in conduct to prevent Kal Tire from learning of his new address, i.e., by providing an address to the DMV at which he now claims he does not reside.
Inasmuch as Mr. Deninno claims that his failure to notify the DMV does not estop him from asserting lack of personal jurisdiction by a state in which he is not a resident, this proposition cannot be the basis of dismissal because Mr. Deninno only moved to dismiss based on the service component of personal jurisdiction under CPLR § 308(2), and not under any jurisdictional basis pursuant to either CPLR § 301 or CPLR § 302. For the avoidance of doubt, none of Mr. Deninno’s motion papers address personal jurisdiction over him, generally.
As Mr. Deninno is estopped from contesting the validity of service to his LIC Address, his motion to dismiss must be denied and Kal Tire’s cross-motion is, therefore, denied as moot.
(Internal quotations and citations omitted) (emphasis added).
The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. Contact Schlam Stone & Dolan partner John Lundin at email@example.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.
Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.